Federal courts continue to grapple with the complex question of when a defendant may successfully invoke the fair-use doctrine as a defense against copyright-infringement claims. Fair use is a hot topic in copyright law these days, and it has prompted some high-profile litigation and some important recent decisions in the appellate courts.

But a defendant might also be able to prevail on a more fundamental theory—that the plaintiff’s work isn’t protectable by copyright in the first place. We saw a failed attempt at this type of defense recently in the Ninth Circuit Court of Appeals, when an entrepreneur accused of infringing DC Comics’s copyright in the Batmobile argued that the Batmobile was not a copyrightable character. There, the Ninth Circuit rejected the defendant’s argument, holding that the Batmobile had the required physical and conceptual qualities, was sufficiently delineated so as to be recognizable across works, and was sufficiently distinctive and expressive so as to warrant protection as a character under federal copyright laws.

In another recent case from the Ninth Circuit, however, the copyright infringement defendant’s arguments succeeded; the appellate court ultimately ruled that the “work” the plaintiff sought to protect was not copyrightable at all. The plaintiff was a famous yoga teacher, Bikram Choudhury, who sued two of his former students after their yoga studio, Evolation Yoga, began offering hot yoga classes which, according to Choudhury, copied his “Sequence” of 26 postures and two breathing exercises, performing them in the same order and under the same conditions (a 90-minute class in a room heated to 105 degrees) as Choudhury’s signature classes. The Sequence is described in a book Choudhury published in 1979. He owns a registered copyright in the book itself, but that’s not the focus of this case; in 2002, he also filed a supplementary registration form purporting to copyright the “compilation of exercises” contained in the book. When he sued the Evolation defendants for infringing his Sequence, the defendants argued that the Sequence itself could not be copyrighted (by Choudhury or anyone else).

The case “implicates a fundamental principle underlying constitutional and statutory copyright protection—the idea/expression dichotomy.” In other words, copyright protection is limited to the expression of ideas, and does not extend to the ideas themselves. Thus, for example, a manual describing how to perform a process may be copyrighted, but the copyright does not extend to the process itself. Indeed, federal law is clear that copyright that cannot provide protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” See 17 U.S.C. § 102(b). As the Ninth Circuit explained in its opinion, the idea/expression dichotomy serves vital policy purposes, including protecting freedom of speech and encouraging innovation, by ensuring that no one owns a monopoly on an idea.

The district court had granted partial summary judgment for the defendants, ruling that the Sequence was simply “a collection of facts and ideas” not entitled to copyright protection. On appeal, a unanimous three-judge panel agreed that “at bottom, the Sequence is an idea, process, or system designed to improve health. Copyright protects only the expression of this idea—the words and pictures used to describe the Sequence—and not the idea of the Sequence itself.” It cited cases rejecting copyright protection for a meditation technique, a set of rules, how-to methods, and recipes. The court opined that “Choudhury’s healing methodology,” like other health-care procedures, “is not eligible for protection by copyright. Indeed, if it is entitled to protection at all, that protection is more properly sought through the patent process.”

The court rejected Choudhury’s emphasis on the aesthetic beauty of the Sequence, noting that many processes could be described as graceful or beautiful but that does not render them protectable via copyright. In this vein, it also held that the Sequence is not copyrightable as a “choreographic work.” The court noted that there is little guiding precedent about what constitutes a choreographic work, but nevertheless the court was confident that a choreographic work must still fall on the correct side of the idea/expression dichotomy; “movements do not become copyrightable as ‘choreographic works’ when they are part and parcel of a process. Even if the Sequence could fit within some colloquial definitions of dance or choreography, it remains a process ineligible for copyright protection.” The court observed that everyday life is rife with “routinized” movements such as mowing one’s lawn or brushing one’s teeth, and “[w]ithout a proper understanding of the idea/expression dichotomy, one might obtain monopoly rights over these functional physical sequences by describing them in a tangible medium of expression and labeling them choreographic works.”

The court’s analysis as it pertains to systems or methods of movements applies beyond exercise, and will be of interest to those involved in performance art, dance, and much more. The opinion also alludes to the way that copyright law sometimes brushes up against patent law; it is possible that a complex method like Choudhury’s Sequence, while not copyrightable, could qualify for patent protection. And at its core, the case represents a thoughtful treatment of the idea/expression dichotomy generally, and a reminder about the limits of the reach of copyright protection.